New EEOC Resources of Special Note Employer-Provided Leave and the - PDF document

Reasonable Accommodation Update 9/15/16 1 See new handout: “Key ADA and GINA Documents Available from the U.S. Equal Employment Opportunity Commission on www.eeoc.gov” Updated: July 2016 2 New EEOC Resources of Special Note • Employer-Provided Leave and the Americans with Disabilities Act (5/9/16) https://www.eeoc.gov/eeoc/publications/ada-leave.cfm • Legal Rights for Pregnant Workers Under Federal Law www.eeoc.gov/eeoc/publications/pregnant_workers.cfm • Helping Patients Deal with Pregnancy-Related Limitations and Restrictions at Work www.eeoc.gov/eeoc/publications/pregnancy_health_providers.cfm • What You Should Know About HIV/AIDS and Employment Discrimination www.eeoc.gov/eeoc/newsroom/wysk/hiv_aids_discrimination.cfm • Living with HIV Infection: Your Legal Rights in the Workplace Under the ADA www.eeoc.gov/eeoc/publications/hiv_individual.cfm • Helping Patients with HIV Infection Who Need Accommodations at Work www.eeoc.gov/eeoc/publications/hiv_doctors.cfm 3 1

Does the Individual Requesting Accommodation Have a Substantially Limiting Impairment? • Employer is free to provide accommodations to anyone, but simply be sure not to engage in disparate treatment. • If employer has determined not to provide accommodation unless individual is legally entitled to it, threshold issue is whether individual has or had an impairment that “substantially limits a major life activity,” and presently needs accommodation. 4 Supporting Medical Information • Accommodation request may be oral, and is simply a request for some type of change due to a medical condition. • Once accommodation request is made, when and how much medical information can the employer ask for in support of the accommodationrequest? • ADAAA has not changed the rule: If not obvious or already known, an employer may obtain reasonable documentation that an employee has a disability and needs the accommodation requested . 5 Supporting Medical Information • Employer may ask employee to obtain the supporting medical information from employee’s treating health care provider, or ask employee to sign limited release allowing employer to contact the health care provider directly. • For example, employer might seek to verify diagnosis and limitations, follow up to clarify limitations as well as what accommodation might be effective, and for how long it may be needed. 2

Assessing Medical Information • Remember changes made by the ADA Amendments Act of 2008 (ADAAA). • ADAAA: Definition of disability “shall be construed in favor of broad coverage” and “should not demand extensive analysis. ” • Definition much easier to meet. 7 When it enacted the ADAAA, Congress made 4 changes to “substantially limited in a major life activity”: -- Need not prevent, or significantly or severely restrict , a major life activity --Major life activities include “major bodily functions” --Ameliorative effects of mitigating measures not considered --Impairments that are “episodic” or “in remission” are substantially limiting if they would be when active 8 “Substantially Limits” (cont’d) • No minimum duration : impairment can be “substantially limiting” even if lasts or is expected to last fewer than 6 months. 29 C.F.R. § 1630.2(j)(1)(ix). • Duration is a relevant factor, but even short- term/temporary conditions can now be “substantially limiting” • Example: Back impairment that causes 20-pound lifting restriction lasting several months. 3

Most Common Examples of Accommodation • Physical modifications • Sign language interpreters and readers • Assistive technology and modification of equipment or devices • Modified work schedules • Making exceptions to policies • Job restructuring (swapping or eliminating marginal functions) • Changing supervisory methods 10 Examples (cont’d) • Allowing job coach • Telework • Leave • Accommodation of last resort: reassignment to existing vacant position for which individual is qualified and that is not a promotion 11 Actions Never Required as Reasonable Accommodation • Lowering production or performance standards (but pro-rate production requirements for period of leave as an accommodation) • Excusing violations of conduct rules that are job- related and consistent with business necessity • Removing an essential function • Monitoring an employee’s use of medication • Providing personal use items • Changing someone’s supervisor (though changing supervisory methods may be required) • Actions that would result in undue hardship (i.e. significant difficulty or expense) 12 4

Undue Hardship Considerations • Nature and cost of the accommodation (“significant difficulty or expense”) • Resources available to the employer overall (not just individual division or department) • Impact of the accommodation on operations 13 Keys to the Interactive Process  Communicate, exchange information, search for solutions, consult resources as needed  If requestor only knows the problem, not the solution, employer is still obligated to provide an accommodation if available. Search for possible accommodations.  If requestor asks for a particular accommodation, but it is one that legally need not be provided (e.g., request to lower production standards), employer must provide an alternative if available. Search for and consider alternative accommodations. 14 What if employee requests to be excused from performing job duty due to medical condition?  If it’s a marginal function – can it be swapped or eliminated without undue hardship?  If it’s an essential function, it need not be removed, but can employee be accommodated to perform it?  If employee cannot be accommodated in position, he could still be qualified for a position to which he could be reassigned…is there a vacant position for which he is qualified (the accommodation of last resort)? 15 5

Equally Effective Alternative? Dones v. Brennan, et al. 2016 U.S. Dist. LEXIS 6887 (D. Md. Nov. 23 , 2015) • Postal employee with herniated disc and related impairments had restriction of no twisting his neck; doctor recommended swivel chair for use while casing mail • Agency instead provided rest bar and modified his job description to no twisting; he repeatedly requested the swivel chair, notifying the agency that the rest bar still required him to twist his neck when casing • Held: summary judgment for agency denied • Employer has discretion to choose alternative accommodation, but it must be equally effective • No defense that supervisors honestly albeit mistakenly thought employee had to request chair himself through workers’ compensation process 16 Reyazuddin v. Montgomery County, Md. 789 F.3d 407 (4th Cir. 2015) • County call center obtained new technology that was not compatible with the screen reader and other accommodations used by a blind employee • Cautionary tale about procurement and technology upgrades: ensure accessibility before purchase • Fixing after the fact would cost $125,000 or even more. County argued $15,000 annual line item for accommodations. • Cautionary tale about cost: “Allowing the county to prevail on its undue hardship defense based on its own budgeting decisions would effectively cede the legal determination on this issue to the employer that failed to accommodate a employee with a disability….The County’s overall budget ($3.73 billion in fiscal year 2010) and the [call center]’s operating budget (about $4 million) are relevant factors. 42 U.S.C. Section 12111(10)(B)(ii)- (iii). But the county’s line -item budget for reasonable accommodations is not.” 17 Note: Section 508 of the Rehabilitation Act • Requirements for federal agencies on procuring accessible technology • www.section508.gov 18 6